1/31/2011

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Toward the end of my last post analyzing Judge Vinson’s excellent decision striking down the entirety of Obamacare, I wrote the following to explain why there was no injunction:

[T]he court reasoned that a judgment declaring the law to be unconstitutional is sufficient relief to the plaintiffs because “there is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” (internal quotation marks removed.) In other words, he felt that the Federal Government would try to obey the law without the court formally ordering its obedience. But believe you me, if the Obama administration ignores this ruling, the court can and certainly will revisit the matter and issue an injunction.

“We don’t believe this kind of judicial activism will be upheld,” said Obama spokeswoman Stephanie Cutter in a blog post published at WhiteHouse.gov.

Senior administration officials vowed implementation of the law would “proceed apace.”

Well, go ahead, see what happens if you try to implement Obamacare without actually overturning the decision.

And notice that term “activism.” The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals. They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air. Let’s suppose for the sake of argument that the judge’s opinion is not supported by the constitution or precedent—they have no principled objection to that. So their objection is merely to losing.

White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.

“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.

That is via Volokh’s David Bernstein who wonders why they were granted anonymity for such inanity. As Jennifer Rubin correctly argues “These are complaints, not legal arguments. And they suggest that the left was totally unprepared for the constitutional attack on their beloved handiwork.” Again, Obama himself was a constitutional law professor. And he was caught by surprise? Shouldn’t he have known this might happen?

Is there a job he is good at?

Meanwhile Ezra Klein makes a feeble attempt to attack the ruling. I would fisk it, but the boys at Powerline already have.

Vinson tossed the entire thing because it lacked a “severability clause,” which would have compartmentalized the legislation itself and forced judges to weigh individual sections on their own merits. But the standard isnot that an unseverable law should be stricken in its entirety.

No, Ferris Bueller Beutler, it is not simply an automatic either/or proposition. Sometimes the court says that one part can be severed. And other times the court says that it can’t be. But as Jennifer Rubin points out, Obama’s own lawyers conceded it couldn’t be severed. Which should end the discussion.

And while most judges are content to label the judge a republican, Think Progress takes the screeching to an additional level, calling him (without citing any evidence) a Tea Party Judge. Or is the new rule that anyone who mentions the Boston Tea Party is a member of the current Tea Party?

Or wait, maybe they mean this kind of Tea Party?

Tell the truth, liberals. You think the modern, political movement called the Tea Party is exactly like this, don’t you?

My title is kind of a pun because one thing that leaps out at the start is that Vinson is not giving a simple rote discussion of the case law. He takes time to discuss the views of the founders and the entire evolution of law under the Commerce Clause, and in many ways is trying to mimic the great jurists of the past. He is, in that way, a man of the Enlightenment—consciously paying attention to the values of that period. Thus, “enlightened” in that sense, if not enlightened in the ordinary meaning of the word.

If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power,”…, and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Now compare it to this section from Marbury v. Madison, discussing the theory that the Courts should obey a statute even if it is unconstitutional:

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

But the Great Chief Justice (John Marshall) and Judge Vinson are asking the same basic question. It is a variation of the question “if they can do this, what can’t they do?” Only it adds an additional wrinkle, asking, “if they can do this, then why does the constitution pretend to limit the power of the Federal Government at all?”

There are several passages that also strike me as persuasive. For instance, most of the time discussion of the historical meaning of the Commerce Clause is not very useful because we have passed those limits ages ago. But this line gives any reasonable reader pause at the threshold the Democrats have breezed past:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

And it touches on a point I made. If Obamacare is legal, then Congress essentially has the power to ban boycotts:

I mean consider a simple example. Rosa Parks one day decides she is not giving up her seat to a white man even though a law purports to require her to, and as a result, she is arrested. In response Martin Luther King, Jr. and many others lead a boycott of the bus system. But, according to the court in Liberty University [a case upholding the mandate], Congress could pass a law requiring every person to use a city bus for transportation where it is available, and thus outlaw the Montgomery Bus Boycott.

The judge does not, as I did in that post, fully develop this right to boycott argument, but instinctively the judge understands it.

There were a few lines that struck me as rhetorical “shots” (if you excuse my metaphorically violent language) at different targets, which I don’t approve of as a lawyer (although part of me smiles anyway). For instance, at one point he confronted the argument that, in theory, sooner or later we will all need health care, pointing out that the same could be said about food. Then he writes:

Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system.

Now, show of hands, is there anyone here who doesn’t think this was sparked by this?

And if David Weigel is right, it was the issue of severability that bit them in the keister. That means the entire law is declared unconstitutional, at least in that court.

I have written before where the failure to read the law caused them to pass a law without a normal severability provision. And I have written in the past where Judge Vinson has punished congress (intentionally or not) for their failure to carefully read and craft this legislation. That should be a useful backgrounder.

But I haven’t read a word of the decision. I will post analysis when I do.

And by my count, two other district courts upheld it. So, so far the score is 2-2. And the other case that struck it down, only struck down the mandate, and severed the rest. So bluntly, I think this is well on its way to the Supreme Court. And when it gets there, I have previously argued that Justice Kennedy will see Obamacare as the end of the right to privacy and strike this law down. (Warning: Coarse language the last link.)

Anyway, you can read the opinion at Weigel’s link. And regardless of all that, this is a very hopeful sign.

(Hat Tip: JD)

Update: Here’s another link to old analysis while I read it explaining why I think the mandate is unconstitutional under the First Amendment.

Update (II): Still reading, but this analysis is relevant, too. As in, the judge is employing logic very similar to this post.

Homeland Security Secretary Janet Napolitano, delivering her first State of Homeland Security address last Thursday, gave an upbeat account of her agency’s accomplishments, including its efforts on immigration and securing the U.S. border.

But Arizona’s Pinal County Sheriff Paul Babeu — named Sheriff of the Year last week by the National Sheriff’s Association — said Napolitano’s speech was selective in what it emphasized and what it did not disclose.

. . . . [Babeu] said [Napolitano’s] remarks did not reflect conditions on the ground in Arizona where in the last two years the amount of illegal drugs entering the state that have been confiscated by local authorities has doubled, and the number of pursuits of criminal illegal aliens has tripled.

“Why isn’t the secretary of homeland security speaking to these threats?” Babeu said in a telephone interview with CNSNews.com. “Why does she keep trying to convince us through argument that everything is just fine to the point that she’s trying to hypnotize us into believing this c–p.”

(Deletions in original.)

We’re in the very best of hands.

I guess when you can’t even identify illegal alien criminals as illegal aliens, it makes it easier to claim there is no problem with illegal alien criminals. From the Washington Post:

Salvador Portillo-Saravia, a member of the MS-13 street gang, was charged with raping an 8-year-old girl at her Fairfax County home last month. But he never should have been in Fairfax in the first place.

Federal officials deported Portillo-Saravia, of Sterling, to El Salvador in 2003, and he sneaked back in illegally. Now, officials are wondering why a much-touted federal program didn’t catch him before the rape.

Four weeks before the crime, Portillo-Saravia was in the Loudoun County jail for public intoxication. That’s when the Immigration and Customs Enforcement (ICE) program, called Secure Communities, should have identified him as an illegal immigrant and he should have been taken into custody.

Loudoun authorities ran Portillo-Saravia’s fingerprints through a federal database, but despite the 2003 deportation, nothing was found. He was released after 12 hours behind bars.

The very best. Of hands.

Illegal immigrant crime continues to be a problem everywhere, but while you might see the legal status of a sexual offender mentioned by a Texas media source, good luck seeing it in the L.A. Times.

Speaking of sheriffs, by the way, Sheriff Lobo Dupnik is still trying to prove that rhetoric caused the Giffords shooting. L.N. Smithee has the details.

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